dismissed EB-1A Case: Singer And Actress

(b)(6)
DATE: DEC 2 9 2014 
IN RE: Petitioner: 
Beneficiary: 
Office: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
PETITION: Immigrant Petition for Alien Worker as an Alien of Extraordinary Ability Pursuant to Section 
203(b )(l)(A) of the Immigration and Nationality Act; 8 U.S.C. § 1153(b )(l)(A) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office (AAO) in your case. 
This is a non-precedent decision. The AAO does not announce new constructions of law nor establish agency 
policy through non-precedent decisions. If you believe the AAO incorrectly applied current law or policy to 
your case or if you seek to present new facts for consideration, you may file a motion to reconsider or a 
motion to reopen, respectively. Any motion must be filed on a Notice of Appeal or Motion (Form I-290B) 
within 33 days of the date of this decision. Please review the Form l-290B instructions at 
http://www.uscis.gov/forms for the latest information on fee, filing location, and other requirements. 
See also 8 C.F.R. § 103.5. Do not file a motion directly with the AAO. 
Thank you, 
t!f �on Rosenberg 
Chief, Administrative Appeals Office 
www.uscis.gov 
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Page 2 
DISCUSSION: The Director , Texas Service Center, denied the employment-based immigrant visa 
petition, which is now before the Administrative Appeals Office (AAO) on appeal. The appeal will 
be dismissed. 
The petitioner seeks classification as an "alien of extraordinary ability" as a singer and actress, 
pursuant to section 203(b)(l)(A) of the Immigration and Nationality Act (the Act), 8 U.S.C. 
§ 1153(b)(l)(A), which makes visas available to aliens who can demonstrate their extraordinary 
ability through sustained national or international acclaim and whose achievements have been 
recognized in their field through extensive documentation. The director determined that the 
petitioner had not satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3), which 
requires documentation of a one-time achievement or evidence that meets at least three of the ten 
regulatory criteria. 
For the reasons discussed below, we agree that the petitioner has not established her eligibility for 
the exclusive classification sought. Specifically, the petitioner has not submitted qualifying evidence 
of a one-time achievement pursuant to 8 C.F.R. § 204.5(h)(3), or evidence that satisfies at least three 
of the ten regulatory criteria set forth in the regulations at 8 C.F.R. § 204.5(h)(3)(i)-(x). As such, the 
petitioner has not demonstrated that she is one of the small percentage who is at the very top in the 
field of endeavor , and that she has sustained national or international acclaim. See 8 C.F.R. 
§ 204.5(h)(2), (3). Accordingly , we will dismiss the petitioner's appeal. 
A review of the director's decision reflects references to letters from 
as well as references, in response to the director's request for evidence (RFE), to letters 
from � The letters, however , were not in the record of 
proceeding. On October 30, 2014, we requested the petitioner, via fax to the petitioner's counsel at 
the number listed on the Form I-290B, Notice or Appeal or Motion , to resubmit the letters within 30 
calendar days. As of this date, we have received nothing further. Accordingly, the record is 
considered complete as it now stands, and we will make a determination on the petitioner's appeal 
based on the evidence that is contained in the record of proceeding. 
I. LAW 
Section 203(b) of the Act states, in pertinent part, that: 
(1) Priority workers. -- Visas shall first be made available ... to qualified immigrants 
who are aliens described in any of the following subparagraphs (A) through (C): 
(A) Aliens with extraordinary ability. -- An alien is described in this 
subparagraph if --
(i) the alien has extraordinary ability in the sciences, 
arts, education, business, or athletics which has been 
demonstrated by sustained national or international 
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acclaim and whose achievements have been recognized 
in the field through extensive documentation, 
(ii) the alien seeks to enter the United States to continue 
work in the area of extraordinary ability, and 
(iii) the alien's entry into the United States will 
substantially benefit prospectively the United States. 
U.S. Citizenship and Immigration Services (USCIS) and legacy Immigration and Naturalization 
Service (INS) have consistently recognized that Congress intended to set a very high standard for 
individuals seeking immigrant visas as aliens of extraordinary ability. See H.R. 723 101 st Con g., 2d 
Sess. 59 (1990); 56 Fed. Reg. 60897, 60898-99 (Nov. 29, 1991). The term "extraordinary ability" 
refers only to those individuals in that small percentage who have risen to the very top of the field of 
endeavor. !d.; 8 C.F.R. § 204.5(h)(2). 
The regulation at 8 C.F.R. § 204.5(h)(3) sets forth a multi-part analysis. First, a petttwner can 
demonstrate the alien's sustained acclaim and the recognition of the alien's achievements in the field 
through evidence of a one-time achievement (that is, a major, internationally recognized award). If 
the petitioner does not submit this evidence, then a petitioner must submit sufficient qualifying 
evidence that meets at least three of the ten categories of evidence listed at 8 C.F.R. § 204.5(h)(3)(i)­
(x). 
The submission of evidence relating to at least three criteria, however, does not, in and of itself, 
establish eligibility for this classification. See Kazarian v. USCIS, 596 F.3d 1115 (91h Cir. 2010) 
(discussing a two-part review where the evidence is first counted and then, if satisfying the required 
number of criteria, considered in the context of a final merits determination). See also Rijal v. 
USCIS, 772 F.Supp.2d 1339 (W.D. Wash. 2011) (affirming USCIS' proper application of Kazarian), 
aff'd, 683 F.3d. 1030 (91h Cir. 2012); Visinscaia v. Beers, 4 F.Supp.3d 126, 131-32 (D.D.C. 2013) 
(finding that USCIS appropriately applied the two-step review); Matter of Chawathe, 25 I&N Dec. 
369, 376 (AAO 2010) (holding that the "truth is to be determined not by the quantity of evidence 
alone but by its quality" and that USCIS examines "each piece of evidence for relevance, probative 
value, and credibility, both individually and within the context of the totality of the evidence, to 
determine whether the fact to be proven is probably true"). 
II. ANALYSIS 
A. Evidentiary Criteria 1 
Published material about the alien in professional or major trade publications or 
other major media, relating to the alien's work in the field for which classification is 
1 We have reviewed all of the evidence the petitioner has submitted and will address those criteria the 
petitioner claims to meet or for which the petitioner has submitted relevant and probative evidence. 
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sought. Such evidence shall include the title, date, and author of the material, and 
any necessary translation. 
The director determined that the petitioner established eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) requires "[p]ublished material about the 
alien in professional or major trade publications or other major media, relating to the alien's work in 
the field for which classification is sought." A review of the record of proceeding, however, does 
not reflect that the petitioner submitted sufficient documentary evidence establishing that she meets 
the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii). 
In general, in order for published material to meet this criterion, it must be about the petitioner and, 
as stated in the regulations, be printed in professional or major trade publications or other major 
media. To qualify as major media, the publication should have significant national or international 
distribution. Some newspapers, such as the nominally serve a particular locality 
but would qualify as major media because of significant national distribution, unlike small local 
community papers. Furthermore, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(iii) 
requires that "[s]uch evidence shall include the title, date, and author of the material, and any 
necessary translation." 
A review of the record of proceeding reflects that the petitioner submitted foreign language 
documents with the following documentation: 
1. A partial translation of an article entitled, 
2. A partial translation of an article entitled, 
3. A partial translation of an article entitled, ' 
4. A partial translation of an untitled article, on an unidentified date, by an 
unidentified author, 
5. A partial translation of an article entitled, " 
--------------� on an unidentified date, 
6. A translation of an article entitled, 
and 
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Page 5 
Regarding items 1 - 5, the petitiOner did not submit full translations of the foreign language 
documents. Although the translator indicated on each translation that "[t]his is a true partial 
translation of an article," the regulation at 8 C.F.R. § 103.2(b) provides in pertinent part: 
(3) Translations. Any document containing foreign language submitted to USCIS 
shall be accompanied by a full English language translation which the translator has 
certified as complete and accurate, and by the translator's certification that he or she is 
competent to translate from the foreign language into English. 
As cited above, the regulation at 8 C.F.R. § 103.2(b)(3) specifically requires that any foreign 
language document that is submitted to USCIS must be accompanied by a full and certified English 
language translation. As the petitioner did not comply with the regulation at 8 C.F.R. §1 03.2(b)(3), 
the partial translations have no probative value and cannot be accorded any weight. Moreover, as 
the petitioner did not submit full English language translations of the articles, the petitioner has not 
demonstrated that the articles are published material about her relating to her work in the field. 
Furthermore, regarding items 3- 5, the petitioner did not include the title, author, and/or date of the 
material as required by the regulation at 8 C.F.R. § 204.5(h)(3)(iii). In addition, the Qetitioner did 
not submit any documentary evidence establishing that 
are professional or major trade publications or other major media. 
Regarding item 6, the article reflects published material about the petitioner relating to her work in 
the musical field. The petitioner, however, did not submit any documentary evidence demonstrating 
that is a professional or major trade publication or other major medium. 
The petitioner also submitted the following documentation: 
7. A screenshot entitled, ' 
8. 
___ 
, with an unidentified author and date, www. 
A screenshot entitled, " 
_ 
with an author and date, www. 
9. A partial screenshot entitled, ' 
10. 
11. 
author and date unidentified, www . 
A screenshot entitled,' _ 
the author and date not identified, www. 
www . 
A screenshot entitled, � _ 
(source credited as 
" with 
(source credited as 
with an unidentified author and date, ..:..::w...!.ww'-'-'-----�1 (source credited as 
www ); 
(b)(6)
Page 6 
12. 
13. 
A screenshot entitled, 
an unidentified author and date, www. 
; and 
A screenshot entitled, ' 
NON-PRECEDENT DECISION 
'w ith 
(source creaited as 
" 
with an unidentified author and unidentified date, www. (source 
credited as www. ). 
Regarding items 7 - 13, the petitioner did not include the author and date of the material as required 
by the regulation at 8 C.F.R. § 204.5(h)(3)(iii). Moreover, although the screenshots reflect material 
about the petitioner relating to her work, the petitioner did not submit any documentary evidence 
establishing that the material was published in professional or major trade publications or other 
major media. 
As evidenced above, the majority of the petitioner's documentary evidence does not comply with the 
regulation at 8 C.F.R. § 204.5(h)(3)(iii) requiring "the title, date, and author of the material, and any 
necessary translation." In addition, the petitioner did not submit full English translations of the 
foreign language articles as required by the regulation at 8 C.F.R. § 103.2(b)(3). Moreover, although 
the petitioner submitted an article and screenshots reflecting material about her and her work, the 
petitioner did not establish that the material was published in professional or major trade 
publications or other major media. The burden is on the petitioner to establish every element of this 
criterion. For these reasons, we withdraw the decision of the director for this criterion. 
Accordingly, the petitioner did not establish that she meets this criterion. 
Evidence of the alien's original scientific, scholarly, artistic, athletic, or business­
related contributions of major significance in the field. 
The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.F.R. § 204.5(h)(3)(v) requires "[e]vidence of the alien's original 
scientific, scholarly, artistic, athletic, or business-related contributions of major significance in the 
field." Here, the evidence must rise to the level of original contributions "of major significance in 
the field." The phrase "major significance" is not superfluous and, thus, it has some meaning. 
Silverman v. Eastrich Multiple Investor Fund, L.P., 51 F. 3d 28, 31 (3rd Cir. 1995) quoted in APWU 
v. Potter, 343 F.3d 619, 626 (2"d Cir. Sep 15, 2003). 
On appeal, the petitioner refers to her previously submitted compact disc entitled, 
which she claims "is composed of purely original songs which were written and composed by her, " 
and a letter from who confirmed that the company is 
in the process of recording the petitioner's second c , an t e recording should last between eight to 
ten months. Regarding the petitioner's first cd, the petitioner did not submit any documentary 
evidence establishing that her compact disc has been of major significance in the field. The 
petitioner, for example, did not submit any documentary evidence reflecting the impact or influence 
the cd has had on the music industry, so as to demonstrate an original contribution of major 
(b)(6)
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Page 7 
significance in the field. Furthermore, submitting a sample of the petitioner's work is insufficient to 
meet the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(v) without submitting 
documentary evidence establishing that her work has been of major significance. 
Moreover, Mr. stated that the petitioner's second album is in the process of being produced 
and recorded and has yet-to-be-released. The petitioner has not established that her second compact 
disc has already been a contribution of major significance in the field. Eligibility must be 
established at the time of filing. 8 C.P.R. § 103.2(b)(1), (12); Matter of Katigbak, 14 I&N Dec. 45, 
49 (Reg'l Comm'r 1971). A petition cannot be approved at a future date after the petitioner becomes 
eligible under a new set of facts. Matter of Izummi, 22 I&N Dec. 169, 175 (Comm'r 1998). That 
decision further provides, citing Matter of Bardouille, 18 I&N Dec. 114 (BIA 1981), that USCIS 
cannot "consider facts that come into being only subsequent to the filing of a petition." Id. at 176. 
In addition, the petitioner claims on appeal that she "has been invited several times to award 
ceremonies for -------� � ------. , 
" The petitioner 
submitted two photographs of herself and one hoto posing with another individual with handwritten 
notations indicating ' ' The 
photographs do not establish that she was invited to the award ceremonies. Regardless, the 
petitioner has not demonstrated how her invitations can be considered original contributions of 
major significance in the field. The petitioner also claims on appeal that "[s]he has had the 
opportunity to work with gran [sic] celebrities such as _ 
_ (pictures attached)." Although the petitioner submitted photographs, the petitioner did not 
submit any documentary evidence establishing how her work with celebrities resulted in any original 
contributions of major significance in the field. 
In response to the director's request for evidence (RFE), the petitioner submitted a May 22, 2013 
letter from On appeal, the petitioner submitted another 
letter from Mr. also dated May 22, 2013. The petitioner claims that these letters "attest to 
the fact that [she] has formed part of their events and that for the past 7 years they have had a 
relationship with her." Although the letters praise the petitioner as "an amazing singer and actress," 
they offer no evidence of any original contributions of major significance to the field. The letters do 
not indicate what the petitioner has contributed and how those contributions are considered of major 
significance in the field. 
Furthermore, the petitioner submitted a letter from 
Inc., who stated that he became acquainted with the petitioner at a social event in 
Florida in 2011 and that "she has a delightful and charismatic personality." None of the letters, 
however, indicated how the petitioner's talents or personal traits are original contributions of major 
significance in the field. Having a diverse skill set is not a contribution of major significance in and 
of itself. Rather, the record must be supported by evidence that the petitioner has already used those 
unique skills to impact the field at a significant level in an original way. Furthermore, assuming the 
petitioner's skills are unique, the classification sought was not designed merely to alleviate skill 
shortages in a given field. In fact, that issue properly falls under the jurisdiction of the Department 
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Page 8 
of Labor through the alien employment labor certification process. See Matter of New York State 
Department ofTransportation, 22 I&N Dec. 215, 221 (Assoc. Comm'r 1998). 
The opinions of the petitioner's references are not without weight and have been considered above. 
USCIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. 
See Matter of Caron International, 19 I&N Dec. 791, 795 (Comm'r 1988). However, USCIS is 
ultimately responsible for making the final determination regarding an alien's eligibility for the 
benefit sought. /d. The submission of reference letters supporting the petition is not presumptive 
evidence of eligibility; USCIS may evaluate the content of those letters as to whether they support 
the alien's eligibility. See id. at 795-796; see also Matter of V-K-, 24 I&N Dec. 500, n.2 (BIA 2008) 
(noting that expert opinion testimony does not purport to be evidence as to "fact"). Thus, the content 
of the references' statements and how they became aware of the petitioner's reputation are important 
considerations. Even when written by independent experts, letters solicited by an alien in support of 
an immigration petition are of less weight than preexisting, independent evidence that one would 
expect of a singer/actress who has made original contributions of major significance in the field. Cf 
Visinscaia v. Beers, 4 F.Supp.3d at 134-135 (concluding that USCIS' decision to give little weight to 
uncorroborated assertions from professionals in the field was not arbitrary and capricious). 
Vague, solicited letters that repeat the regulatory language but do not explain how the petitioner's 
contributions have already influenced the field is insufficient to establish original contributions of 
major significance in the field. Kazarian v. USCIS, 580 F.3d 1030, 1036 (9th Cir. 2009) aff'd in part 
596 F.3d at 1115. Fedin Bros. Co., Ltd. v. Sava, 724 F. Supp. 1103, 1108 (E.D.N.Y. 1989), aff'd, 
905 F. 2d 41 (2d. Cir. 1990); Avyr Associates, Inc. v. Meissner, No. 95 CIV. 10729, *1, *5 
(S.D.N.Y. Apr. 18, 1997). In 2010, the Kazarian court reiterated that the USCIS' conclusion that the 
"letters from physics professors attesting to [the petitioner's] contributions in the field" were 
insufficient was "consistent with the relevant regulatory language." 596 F.3d at 1122. Repeating the 
language of the statute or regulations does not satisfy the petitioner's burden of proof. Moreover, 
the letters considered above primarily contain bare assertions of the petitioner's status in the field 
without providing specific examples of how those contributions rise to a level consistent with major 
significance in the field. Without supporting evidence, the petitioner has not met her burden of 
establishing her present contributions of major significance in the field. Further, USCIS need not 
accept primarily conclusory assertions. 1756, Inc. v. The Attorney General of the United States, 745 
F. Supp. 9, 15 (D.C. Dist. 1990). 
Without additional, specific evidence showing that the petitioner's work has been unus u ally 
influential, widely applied throughout her field, or has otherwise risen to the level of contributions of 
major significance, the petitioner has not established that she meets the plain language of the 
regulation at 8 C.P.R. § 204.5(h)(3)(v). 
Accordingly, the petitioner did not establish that she meets this criterion. 
Evidence that the alien has performed in a leading or critical role for organizations 
or establishments that have a distinguished reputation. 
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The director determined that the petitioner did not establish eligibility for this criterion. The plain 
language of the regulation at 8 C.P.R. § 204.5(h)(3) (viii) requires "[e]vidence that the alien has 
performed in a leading or critical role for organizations or establishments that have a distinguished 
reputation." In general, a leading role is evidenced from the role itself, and a critical role is one in 
which the alien contributed in a way that is of significant importance to the outcome of the 
organization or establishment's activities. 
On appeal, the petitioner claims that she appeared in a lead role for the 
The petitioner submitted a letter from . Executive Director, who stated that the 
petitioner's "acting skills are highly sought [after] and greatly admired by cast and crew alike." 
Moreover, Mr. listed her latest theatrical productions such as 
In addition, the petitioner submitted documentation in a 
foreign language without any English language translations. Without compliance with the regulation 
at 8 C.P.R. § 204.5(h)(3)(viii), the evidence has no probative value and cannot be considered for this 
criterion. The letter from Mr. _. does not indicate that the petitioner performed in a leading or 
critical role for the or for any of its theatrical pro ductions. Although the 
letter indicates that the petitioner was involved in the theatrical productions in some capacity, the 
lack of specific information does not demonstrate that the petitioner's performances or roles were 
leading or critical. The petitioner, for example, did not submit any documentary evidence that 
compared her roles to the other performers, so as to demonstrate that her role was leading or critical. 
Moreover, the petitioner did not submit any documentary evidence establishing that 
or any of its productions have a distinguished reputation as required by the plain language 
of the regulation at 8 C.P.R. § 204.5(h)(3)(viii). 
The petitioner also submitted an April 11, 2011 letter from 
_ _ 
who 
stated that the group had the pleasure of knowing the petitioner for the past four months and is 
"planning on working on a musical collaboration with her." Although the letter was written less 
than two years prior to the filing of the etition, the petitioner did not submit any documentation 
evidencing that she ever collaborated with let alone that she performed in a leading or 
critical role for the group. 
Again, the plain language of the regulation at 8 C.P.R. § 204.5(h)(3)(viii) requires "[ e ]vidence that 
the alien has performed in a leading or critical role for organizations or establishments that have a 
distinguished reputation." The burden is on the petitioner to establish that she meets every element 
of this criterion. Without documentary evidence demonstrating that the petitioner has performed in a 
leading or critical role for organizations or establishments that have a distinguished reputation, the 
petitioner has not demonstrated that she meets the plain language of this regulatory criterion. 
Accordingly, the petitioner did not establish that she meets this criterion. 
B. Summary 
For the reasons discussed above, we agree with the Director that the petitioner has not submitted the 
requisite initial evidence, in this case, evidence that satisfies three of the ten regulatory criteria. 
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III. 0-1 NONIMMIGRANT STATUS 
The petitioner indicated on her Form 1-140, Immigrant Petition for Alien Worker, that she was last 
admitted to the United States on December 29, 2012, as an 0-1 nonimmigrant of extraordinary 
ability. Although the words "extraordinary ability" are used in the Act for classification of artists 
under both the nonimmigrant 0-1 and the first preference employment-based immigrant categories, 
the statute and regulations define the term differently for each classification. Section lOl(a)( 46) of 
the Act states that "[t]he term 'extraordinary ability' means, for purposes of section 101(a)(l5)(0)(i), 
in the case of the arts, distinction." The 0-1 regulation reiterates that "[ e ]xtraordinary ability in the 
field of arts means distinction." 8 C.F.R. § 214.2( o )(3)(ii). "Distinction" is a lower standard than 
that required for the immigrant classification, which defines extraordinary ability as "a level of 
expertise indicating that the individual is one of that small percentage who has risen to the very top 
of the field of endeavor." 8 e.F.R. § 204.5(h)(2). The evidentiary criteria for these two 
classifications also differ in several respects, for example, nominations for awards or prizes are 
acceptable evidence of 0- 1 eligibility, 8 C.F.R. § 214.2(o)(3)(iv)(A), but the immigrant 
classification requires actual receipt of nationally or internationally recognized awards or prizes. 8 
e.F.R. § 204.5(h)(3)(i). Given the clear statutory and regulatory distinction between these two 
classifications, the petitioner's receipt of 0-1 nonimmigrant classification is not evidence of her 
eligibility for immigrant classification as an alien with extraordinary ability. Further, an approval of 
a nonimmigrant visa does not mandate the approval of a similar immigrant visa. Each case must be 
decided on a case-by-case basis upon review of the evidence of record. 
Many I-140 immigrant petitions are denied after USers approves prior nonimmigrant petitions. See, 
e.g., Q Data Consulting, Inc. v. INS, 293 F. Supp. 2d 25 (D.D.e. 2003); IKEA US v. US Dept. of 
Justice, 48 F. Supp. 2d 22 (D.D.e. 1999); Fedin Brothers Co., Ltd. v. Sava, 724 F. Supp. at 1103. 
Some nonimmigrant petitions are simply approved in error. Q Data Consulting, Inc. v. INS, 293 F. 
Supp. 2d at 29-30; see also Texas A&M Univ. v. Upchurch, 99 Fed. Appx. 556, 2004 WL 1240482 
(5th eir. 2004) (finding that prior approvals do not preclude users from denying an extension of 
the original visa based on a reassessment of the alien's qualifications). 
Applications or petitions are not required to be approved where the petitioner has not demonstrated 
eligibility because of prior approvals that may have been erroneous. See, e. g. , Matter of Church 
Scientology International, 19 I&N Dec. 593, 597 (eomm. 1988). Agencies need not treat 
acknowledged errors as binding precedent. Sussex Engg. Ltd. v. Montgomery, 825 F.2d 1084, 1090 
(6th eir. 1987), cert. denied, 485 U.S. 1008 (1988). 
Furthermore, our authority over the service centers is comparable to the relationship between a court 
of appeals and a district court. Even if a service center director has approved a nonimmigrant 
petition on behalf of the alien, we would not be bound to follow the contradictory decision of a 
service center. Louisiana Philharmonic Orchestra v. INS, No. 98-2855, 2000 WL 282785, *1, *3 
(E.D. La.), affd, 248 F.3d 1139 (5th eir. 2001), cert. denied, 122 S.Ct. 51 (2001). 
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An application or petition that does not comply with the technical requirements of the law may be 
denied by us even if the service center does not identify all of the grounds for denial in the initial 
decision. See Spencer Enterfrises, Inc. v. United States, 229 F. Supp. 2d 1025, 1043 (E.D. Cal. 
2001), affd, 345 F.3d 683 (91 Cir. 2003); see also Soltane v. DOJ, 381 F.3d 143, 145 (3d Cir. 2004) 
(noting that we conduct appellate review on a de novo basis). 
IV. CONCLUSION 
The documentation submitted in support of a claim of extraordinary ability must clearly demonstrate 
that the alien has achieved sustained national or international acclaim and is one of the small 
percentage who has risen to the very top of his or her field of endeavor. 
Had the petitioner submitted the requisite evidence under at least three evidentiary categories, in 
accordance with the Kazarian opinion, the next step would be a final merits determination that 
considers all of the evidence in the context of whether or not the petitioner has demonstrated: (1) a 
"level of expertise indicating that the individual is one of that small percentage who have risen to the 
very top of the field of endeavor," and (2) "that the alien has sustained national or international 
acclaim and that his or her achievements have been recognized in the field of expertise." 8 C.F.R. 
§ 204.5(h)(2) and (3); see also Kazarian, 596 F.3d at 1119-20. As the petitioner has not done so, the 
proper conclusion is that the petitioner has failed to satisfy the antecedent regulatory requirement of 
presenting evidence that satisfied the initial evidence requirements set forth at 8 C.F.R § 204.5(h)(3) 
and (4). Kazarian, 596 F.3d at 1122. Nevertheless, although we need not provide the type of final 
merits determination referenced in Kazarian, a review of the evidence in the aggregate supports a 
finding that the petitioner has not demonstrated the level of expertise required for the classification 
sought? 
The appeal will be dismissed for the above stated reasons, with each considered as an independent 
and alternate basis for the decision. In visa petition proceedings, it is the petitioner' s burden to 
establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; 
Matter of Otiende, 26 I&N Dec. 127, 128 (BIA 2013). Here, that burden has not been met. 
ORDER: The appeal is dismissed. 
2 We maintain de novo review of all questions of fact and law. See Soltane v. United States Dep 't of Justice, 
381 F.3d 143, 145 (3d Cir. 2004). In any future proceeding, we maintain the jurisdiction to conduct a final 
merits determination as the office that made the last decision in this matter. 8 C.F.R. § 103.5(a)(1)(ii); see 
also INA§§ 103(a)(1), 204(b); DHS Delegation Number 0150.1 (effective March 1, 2003); 8 C.F.R. § 2.1 
(2003); 8 C.F.R. § 103.1(t)(3)(iii) (2003); Matter of Aurelio, 19 I&N Dec. 458, 460 (BIA 1987) (holding that 
legacy INS, now USCIS, is the sole authority with the jurisdiction to decide visa petitions).